The cartel area has taken centre stage last year. Record fines have been imposed both by the European Commission and the UK's Office of Fair Trading. The value of fines imposed by the Commission is now almost three times that in the United States. The UK's OFT imposed a record fine of £121.5m on BA for price fixing. Moreover, it is pursuing a criminal investigation against individuals. This trend is likely to continue, given the incentives to whistleblow and secure immunity from fines.
At the same time, there is a real push to allow businesses and individuals to recover damages for loss suffered from an illegal cartel. The UK courts are already uniquely placed in Europe to facilitate such actions given the rights of discovery, tight case management and specialist expertise. In the past year we have been involved in a number of cases either acting for claimants or for defendants. Unlike the US, where there are distinct claimant and defendants bars, we see much less of that distinction in the UK and Europe at the moment. This may well be a reflection of the infancy of that market segment and I would expect a polarisation as private antitrust litigation comes of age in Europe.
The other key area in which I would expect significant developments over the next year is in the field of abuse of dominance. The Commission has only recently won a seminal victory against Microsoft. A raft of other cases has been held back pending that outcome. It is fair to say that the judgment has made it much easier for authorities to 'appeal-proof' their case. It remains to be seen whether the authorities have a renewed appetite for such cases outside of the Microsoft-league of cases.
John Schmidt is a partner specialising in competition law with UK law firm Shepherd and Wedderburn.